Surender Kumar v. Anita Chhabra & Ors.

15. It is distinctly clear from the reading of the impugned order that the learned Trial Court has adopted a overly technical approach in closing the right of the petitioner to cross examine PW[1]. The learned counsel was addressing a legal issue before the court, it appears that learned Trial Court got carried away with the impression that the petitioner is habitual in moving applications with an intention to delay the proceeding of the case. It is not in dispute that both the parties to lis have been filing applications under one or the other provisions of law, and rightly so, for determination of the issues as appearing in the pleadings. Importantly, the learned Trial Court ultimately had adjourned the case for disposal of the application moved on behalf of the petitioner under Order VII Rule 14(3) CPC raising a primary issue with respect to de-exhibition documents recorded during the examination in chief, of PW[1] to a next date of hearing and thus could have also granted an opportunity to the petitioner to conclude the cross examination of PW[1].

16. The cross examination of a witness is to be conducted to elucidate the credibility of testimony of a witness and is an important tool to extract truth from the evidence of the witness. Therefore, such an important right cannot be denied to a litigant in a nonchalant way. The impugned order, thus, deserves to be set aside, consequently, the petition allowed.

17. Now, this Court begins to deal with the impugned order dated 12.12.2023.

18. To proceed with the arguments, the learned counsel for the petitioner submitted that, the learned Trial Court did not appreciate the mandate of Order XI Rule 5 of the Commercial Courts Act, 2015 which stipulates that the plaintiff shall not be allowed to rely on documents which were in the plaintiff‟s power, possession and control or custody and not disclosed along with the plaint. It was submitted that as per Statement of Truth, respondents had no other documents in their power and possession at the time of filing suit.

19. It was further submitted that the learned Trial Court failed to understand that the question of filing additional documents in the present suit has already been decided by this court in CM (M) No. 548/2022 vide judgment dated 26.09.2022. Moreover, by way of Order VI Rule 17 CPC, new documents cannot be taken on record or filed during the pendency of a commercial suit, thus in the aforesaid circumstances and background of the case, the additional documents could not have been allowed to be exhibited by the learned Trial Court and respondents cannot place reliance on the said documents. Necessarily, these documents were neither filed with the suit nor relied upon by the respondents though, were filed in support of the application under Order VI Rule 7 CPC.

20. Conversely the learned counsel for the respondents justified the impugned order and submitted that respondents moved a petition against the dismissal order of their application under Order VI Rule 17 CPC before this Court which was allowed and eventually, they were allowed to amend the plaint.

21. It is further submitted that the application under Order VI Rule 17 CPC was moved on the ground that the respondents had come into possession of some cheque book which showed that the deceased predecessor-in-interest namely, Guru Dutt Chhabra had paid by cheques to the defendant an amount of Rs. 48,35,000/- and not only Rs. 26,00,000/- as acknowledged by the petitioner. Allowing the petition means that this court had allowed respondents not only the amendment to the plaint but also the documents on which the amendment was based. Thus, there is no illegality in the impugned order, accordingly, the findings of the learned Trial Court are to be upheld.

22. It is relevant to consider the observations made by the learned trial Court vide the impugned order dated 12.12.2023 which are as follows:-

23. The main contention raised on behalf of the petitioner is that the respondent has placed on record additional documents that were admittedly in the power, custody, possession and control of the respondent, he was required to submit to the rigour of Order XI Rule 1(5) CPC which he has failed to do so. Therefore, the additional documents placed on record are to be de-exhibited. Also, that the said documents i.e., pass book and statement of accounts of Late Guru Dutt Chhabra were filed on the record without seeking leave of the Court as provided under law which were filed only in respect of the application under Order VI Rule 17 CPC, therefore, it is impermissible to circumvent the provision of Order XI Rule 11(5) CPC by taking on record the documents annexed with application under Order VI Rule 17 CPC

24. The respondents have pleaded that the additional documents were part of the application moved under Order VI Rule 17 CPC and the amendment was also sought on the basis of the aforesaid documents which has been allowed vide order dated 12.01.2023 passed by this Court and order has attained finality. Therefore the petitioner cannot dispute and reagitate the issue of placing the documents i.e., pass book and statement of accounts of Late Guru Dutt Chhabra on the record which has already been allowed by the order dated 12.01.2023 of this Court.

25. Needless to say, the Commercial Courts Act, 2015 being a special statute must operate with full thoroughness in respect of commercial suits. The Court cannot be oblivious of the objects and reasons for which the Commercial Courts Act was enacted. The Statement of Objects and Reasons of the Commercial Courts Act specifically refers to the need for speedy disposal of commercial disputes of specific value. In order to achieve the said object, various provisions of the Code of Civil Procedure, 1908 have been amended and made applicable to the commercial suits. It is equally true that while allowing an application under Order XI Rule 1(1) CPC, it is pertinent to look for a reasonable cause, if has been specifically pleaded and a good cause is made out that the litigant could be permitted to place on record documents at a later stage.

26. In the present case, it is found that an application was moved by the respondents under Order VI Rule 17 CPC seeking amendment of the plaint while relying upon certain additional documents. The documents i.e., pass book and statement of accounts of Late Guru Dutt Chhabra were annexed with the application moved under Order VI Rule 17 CPC which fact has been acknowledged by the petitioner in his reply to the application while disputing the plea of the respondent to place the said documents on record. It is relevant to reproduce para 5 of the reply to para 5 of the application under Order VI Rule 17 CPC, which reads as under:- “5. Para no. 5 of the application is wrong and denied. It is wrong that on 04.12.2021 the plaintiffs came into the knowledge of cheque book which clearly reflect that the amount paid by the deceased Late Sh. Guru Dutt Chhabta during his lifetime is R.s. 48,35,000/- (Rs. Fourty Eight Lacs Thirty Five Thousand only) and the same is the amount was not mentioned in undertaking. It is submitted that the plea now taken by the plaintiffs is contradictory to the contents of the alleged undertaking dated 10.10.2016 on the basis of which the suit has been filed by the plaintiffs. That in the undertaking dated 10.10.2016 it is mentioned that the receivable amount was Rs. 66,00,0130/- (Rs. Sixty Six Lacs only) while through this amendment the plaintiffs wants to incorporate the facts that instead of Rs. 66,00,000/- (Rs. Sixty Six Lacs only), it is Rs. 88,35,000/- (Rs. Eighty Eight Lacs Thirty Five Thousand only) which is receivable by the plaintiffs. That the amendment sought by the plaintiffs require fresh suit to be instituted for Rs. 88,35,000/( Rs. Eighty Eight Lacs Thirty Five Thousand only). Moreover, when the cheque book and passbooks/ statement of account were available with the plaintiffs, why it was not filed alongwith the original suit. Through this amendment the plaintiffs wants to bring on record certain document like cheque book, passbook, statement of account on the records while these documents were care and custody of the plaintiffs at the time when the suit instituted. These documents and the amendment which has been sought by the plaintiffs cannot be allowed in this manner. The application is liable to be dismissed.”

27. The said application under Order VI Rule 17 CPC came to be dismissed by the learned Trial Court vide order dated 08.04.2022, however, by way of CM(M) 560/2022 preferred by the respondents, the said application was allowed vide order dated 12.01.2023 observing as under:-

28. In due consideration of above discussion, it is clear that amendment was allowed in respect of averments relating to certain new documents. The new documents filed alongwith the application under Order VI Rule 17 Code of Civil Procedure, 1908 are the passbooks and statement of account. Thus, while permitting the relief of amendment based on „new documents‟ this Court in CM (M) 1691/2023, therefore, allowed the respondents to place the documents annexed with application under Order VI Rule 17 CPC on record.

29. In view of the above, this Court is unable to sustain the submissions made by the petitioner while challenging the aforementioned impugned order. However, by way of repetition, the order dated 12.01.2023, makes it abundantly clear that petitioner is entitled to take all or any objection as available under law by filing the amended written statement. Therefore, the additional documents placed on record are subject to the test of Admissibility and Relevancy. With above observations, the petition is dismissed.

SHALINDER KAUR, J. FEBRUARY 29, 2024